The White House's Fight for Warrantless Cellphone Searches Hinges on a Flip Phone

Last week, the White House filed a petition asking the Supreme Court to sort out whether or not police can search a suspect's cell phone without a warrant. The Obama administration came down firmly on the side of warrantless searches, and has found leverage in its argument by focusing on a case from 2007 that features outdated technology: a flip phone.

Even as decades-old laws allow authorities loopholes for warrantless searches in myriad ways—ECPA's 180 day rule allowing the government to read emails is a big one—the Obama administration is arguing for even more ability to search for evidence without a warrant.

In its fight to allow authorities to search cellphones during arrests, the White House argues that a cellphone is no different than any other property that police are allowed to search following an arrest—your wallet, your notebooks, your backpack and the like are all currently fair game.

In asking the Supreme Court to rule on the matter, the White House has focused on a case stemming from 2007 in which a man named Brima Wurie was arrested on suspicion of conducting a drug deal out of his car. While his possessions were being cataloged at the police station, officers noticed that his flip phone kept ringing, with "my house" showing up as the caller ID on the front screen.

The officers subsequently opened the phone, found the number corresponding with "my house," looked it up on online white pages, and found address. Officers asked Wurie what his address was, and he gave a different location, but assuming that he had drugs at his house and thus was lying, the cops went to the original address. There, cops entered the house to "freeze" it, according to court filings, until a warrant was given, after which a search found 215 grams of crack and other paraphernalia.

It may seem like a drug bust like any other, but Wurie's defense argued that the search through his phone records was illegal unless a warrant was obtained. The First Circuit Court of Appeals agreed earlier this year, setting up the case for an appearance in the Supreme Court.

Should the case go there, the Obama administration may have the advantage. As it lays out in its Wurie petition, the ability of police to search a detained suspect's possessions without a warrant has plenty of legal precedent, and it argues that searching through a phone's address book is no different than flipping through a physical address book, which police would most likely be allowed to do.

And thus we get to the flip phone situation. For all intents and purposes, a flip phone from 2007 is little more than an address book, and as such the Obama administration's argument could pass the scrutiny of the Supreme Court. But the huge problem with that situation is that the ruling could end up setting precedent for all phones.

As Timothy B. Lee explains in the Washington Post, the smartphones we currently use are far more powerful, with our email, Facebook, photos, bank accounts, and all manner of our lives just a click away. At least 61 percent of the country now has a smartphone, which means the specifics of the Wurie case do not apply to the majority of country.

In other words, if the Supreme Court were to decide that the White House argument holds water—phones can be searched without warrants because the phone in question is little more than an address book—then its ruling would already be out of touch with the technological reality of American citizens, most of whom have devices in their pockets filled with far more private information that a flip phone.

Now, there's one snag that the Wurie case doesn't involve: Whether or not police can compel you to give up your password. Should the White House's argument hold, the question of whether or not police can force you to unlock your smartphone for a warrantless search will likely be the next big question in this arena. Naturally, the Department of Justice has already laid groundwork in that area. Plus, as we've seen with the case of David House, if you don't want to unlock your phone or laptop, authorities will just find a way to seize it.

@derektmead